More Moore Bashing

[via Instapundit] Satirist now hoist with his own petard.

Correcting False Impressions

According to Jacob T. Levy

Rachel DiCarlo, at the Weekly Standard's website, repeats the claim that Libertarian Kurt Evans cost Republican John Thune the South Dakota Senate race. As I've blogged before, this claim is almost certainly not true. While Evans did indeed get more votes than separated Thune from Johnson, that was weeks after Evans had dropped out of the race and endorsed Thune. This means that the Libertarian-Republican swing voters are very likely to have swung to Thune. (The 3,000 votes represents a much smaller share of the vote than Evans was picking up in polls before he dropped out.) The remaining 3,000 probably wouldn't have voted for Thune in any event; and on net Evans helped Thune (first, by swinging his way those voters who could be swung; second, by keeping 3,000 of the other voters from voting for Johnson).

Interesting, I wonder if Ralph Nader is likewise keeping Green voters from voting Republican.

USS Clueless has an interesting post that starts with blog etiquette, slides into recent attempts of the blogleft to create a politically correct hemi-demi-blogosphere, and then concludes with a triumphant chorus from J.S. Mills. Pretty neat. Here is an excerpt:

Of course, there are always people who take themselves too seriously and who think they are more important than they truly are. And an unfortunately large number of those are on the political left, where there is a rising horror at the way that we bloodthirsty rabid warbloggers are perverting their medium to deliver the wrong message.
One site, "Rittenhouse Review", has decided to do something about it. Charles Johnson's Little Green Footballs has been a major blip on the leftist radar for a while now, and RR has publicly stated that from now on RR will not link to any site which itself permalinks to LGF.
This strikes me as a beautiful example modern leftist activity: it's public, it's in-your-face, it demonstrates moral and ideological purity, and it will have negligible practical effect. It's pragmatically null. It's a tempest in a teapot.

My question is why is it the left that spends all of its time on ritual purity? This isn't the first time that a gauchist blogger has declared that they wouldn't link to someone who linked to someone else. I can't imagine even making that kind of threat. Not that it would have any effect on anyone, but I couldn't imagine making the threat. What do I care who someone else's friends are?

But for blogleft it's almost reflexive. Dissension is punishable by ostracism and boycott even as to those who link with the pariah. You see the same kind of mentality in speech codes. Guilt by association is what it's called normally, and it occurs when someone is punished because they are associated with someone with less popular or down right noxious views, or when one view is associated with a more noxious view, such as when the idea that Marxist or feminist law studies have contributed nothing to tort law is associated with racism.

Obviously, Rittenhouse Review has the liberty to advocate for any silly thing he feels is necessary. He has the liberty to ask everyone to delink from anyone else. But that doesn't mean it's wise to do so. The function of the markeplace of ideas is not furthered by an intellectual embargo.

That's what I was talking about

Via Instapundit via Jerry Pournelle, Check out this satellite photo of the fogbound Central Valley. The photo was taken on November 20, so if you look at the coast and find Monterey Bay, you can move to the right to the center of the fog mass,and if you stare real hard, you should be able to see me driving up 99 to Sacto.

Requiscat in Pace

The great political philosopher, John Rawls, has died. Rawls certainly was an incredibly influential political philosopher whose seminal work was A Theory of Justice. Rawls major project was to provide a philosophical justification for the modern welfare statement. His ideas about the "veil of ignorance" was a thought provoking heuristic device.

It's been a tough year for great political philosophers. In January of this year, Robert Nozick passed away at 63. Nozick was at one point in his life a libertarian and his seminal work was Anarchy, State and Utopia. Where Rawls would justify the welfare state by having a rational person imagine an ideal world behind a veil of ignorance, Nozick would justify a minimal state by arguing that justice was a value inherent not in an end state, but in the process by which property or services were exchanged.

Oddly, it was always Nozick whose grip on reality was questioned.

Anna over at BBB: Come for the bunny photographs. Stay for the Warmongery is running a site with an odd mix of knowledgeable comments about the relative merits of various surface to air missile systems, pictures of rodents and reviews of really bad Science Fiction flicks. I think she's on to something. Anyhow that let's me seque into my current all-time favorite bad science fiction movie - Deep Rising (1998) - which is your basic alien-style mysterious monster eating the passengers and crew of a luxury liner in the Bermuda Triangle, except it's set in the South Pacific. What sells the movie for me is Treat Williams' matter of fact approach to his character. [When the king devil octopus shows up in the cruise ship's ballroom, Williams observes "Now there's something you don't see every day."] Wes Studi is the leader of a band of mercs and is rapidly carving out a Wes Studi supporting role niche for himself. Kevin J. O'Connor of The Mummie provides a nice comedic touch. Cheesy visual effects. Silly science. Trashy movie, but I like it.

Just when you think science has the basic facts about Planet Earth all organized and categorized....

They discover a new island off of Sicily. Actually, it's the tip of a volcano that has been submerged for over a millenia. It did make a a brief appearance almost two hundred years ago:

The last emergence on July 2, 1831, caused months of international wrangling with four nations making territorial claims including Britain, Spain and the Bourbon court of Sicily.
The rock, which rose some 213 feet above the surface and had a circumference of about 3 miles, emerged for six months, giving the British time to claim it as Graham Island, while Sicily's King Ferdinand II called it Ferdinandea.

And if that's not cool enough, scientists announce that a new mammal species has been identified in Australia. It's a species - or maybe two species - of mountain brushtail possum.

As John Brunner wrote in Stand on Zanzibar "it's a happening world."

The Memory Hole

Media Research Center CyberAlert reports that Dan Rather completely ignored Sen. Daschle's attempt to "censor" Rush Limbaugh and thereby institute a climate of "fear" and "intimidation." He did report that a member of the British royal family had been convicted of allowing her dog to bite two children.

Neat Science Alert, although this may actually be alarming when you think about it.

Also from Country Store is this article Did quark matter strike Earth?

Perhaps the phrase "militant activities" means something somewhat less threatening in Spanish.

Country Store (links still not working) linked to an news article containing this quote from Mexico's foreign minister comments on Mexico's initiation of a "bottoms-up campaign" to win support for the legalization of 3.5 million undocumented workers in the U.S. The article contains this provocative quote:

"What's important is that American society sees a possible migratory agreement in a positive light," Castaneda said. "We are already giving instructions to our consulates that they begin propagating militant activities -- if you will -- in their communities."

Can't say I like the sound of "militant activities" used in reference to such a large block of unassimilated people.

C-SSPAN's Washington Journal had a guest who said that Castaneda is a former hard core leftist. So the "militant activities" phrase may not be entirely innocuous.

Goofball Alert, or let's pick the one place in America least likely to be a bastion of racism.

I'd bet on Harvard, frankly, but three decades of political correct thought policing won't stop this bit of inanity:

Harvard Law Plans Speech Code - lexisONE(sm) Harvard's Black Law Students Association and some faculty have been pressing since last spring for a speech code that would punish offending students and professors. The law school community was ruptured at that time by a series of racial incidents - most notably one student's use of the word "nig" in an online course notebook, a professor's defense of that student, and another professor's comment that feminism, Marxism, and black studies have "contributed nothing" to tort law. Yet while law school officials have taken steps to soothe campus tensions since then, their primary action - forming the Committee on Healthy Diversity, which said it plans to draft the proposed speech code - has created a new wave of concern.

A professor's comment that feminism, Marxism and black studies have contributed nothing to tort law is taken as evidence of racially harassing comment. That ranks up there with the person who wanted to sue her boss for racial harassment because he would listen to Rush Limbaugh on his breaks. The professor's comments are not only obviously a fair point, they are obviously correct.

Nothing hurts like the truth.

Senator Daschle and the commitment to a robust public discourse evidencing the diversity which is the only principle on which America was founded.

Driving back from Sacto last night, I heard Senator Daschle's singularly amazing views on conservative talk radio. If you missed it, here is one quote from ABCNEWS.com:

"What happens when Rush Limbaugh attacks those of us in public life is that people aren't satisfied just to listen," Daschle, D-S.D., told reporters Wednesday. "They want to act because they get emotionally invested. And so, you know, the threats to those of us in public life go up dramatically, on our families and on us, in a way that's very disconcerting."

And here is the money shot from NewsMax.com:

"You know, we see it in foreign countries and we think, 'Well, my God, how can this religious fundamentalism become so violent?' Well, it's that same shrill rhetoric, it's that same shrill power that motivates. Somebody says something and then it becomes a little more shrill the next time. And then more shrill the next time. And pretty soon it's a foment that becomes physical in addition to just verbal. And that's happening in this country."

If you have been popping in here from time to time, you know that I have expressed a concern that the New Class has abandoned its traditional commitment to free speech. One of the vehicles in this process appears to be part of the law relating to "threats." As I observd in that earlier post, the decision in the Plannned Parenthood decision was noteworthy for its cavalier treatement of First Amendment issues in a case where there was no evidence that the defendants had any ability or intent to carry out the alleged threat.

Now comes Daschle's comments. The Machievellian attempt to paint the voters who returned control of the Senate to the Republicans as narrow minded religious bigots is obvious. The hypocrisy of this comment in the face of the Democrats' commitment to preserving the Constitutional right to burn the flag, which might be viewed as threatening to some parts of the population, is noteworthy. The naked power grab of a leader of a party that in the guise of campaign finance reform has sought to limit the ability of Americans to discuss political issues during political campaigns requires more comment. The ignorance of painting Rush Limbaugh as a theocrat is stupifying. The silence of the ACLU which vibrates with offense whenever a creche nears a public square but has nothing to say when a leader of government expresses open hostility to a religion is deafening. Sen. Daschle's comments in the light of the political statements made against Lincoln, Jefferson and Adams suggests a person with limited historical knowledge, which would be a reason in itself for his constituency to retire him from public life.

But, frankly, most alarming is the use of the language of "threats" to describe his opposition. I don't think it's an accident. The Left has spent nearly three decades practicing mind control by describing conservative speech as threatening or the equivalent of verbal violence. Some in the Critical Legal Studies movement such as my old "Biotechnology and the Law" Prof. Richard Delgado are quite open in their view that the First Amendment should not protect racist or sexist speech. One assumes by analogy that "threatening" religious speech - such as that found on Rush Limbaugh's show - would also be put beyond the pale. [Side note on the use of Rush Limbaugh as a litmus test for mind control. I once had a person contact me about suing her boss for racial harassment. She was convinced that he was a racist because one time he told her to move her car from his parking place, she was African-American and he listened to Rush Limbaugh. Of course, we didn't take the case, but the point is instructive. There is a segment of the population that really thinks people should be punished for what they presume other people are thinking based upon what those people read or listen to.]

Senator Daschle's comments are serious because they are highly indicative of a current that is flowing in his party, which may some day find itself enshrined in the Constitution if certain kinds of judges are appointed.

Lileks v. Ellison

Is there nothing sadder than an avante garde radical who is a member of the AARP?

James Lileks has this to say about the latest writings from Harlan Ellison:

The preface was written by Harlan Ellison, and it’s damn near incoherent. It rambles, shouts, hectors, sneers, and does its damnedest to be Harlanesque, but it just sounds like a cranky old man who finally got through to Art Bell and is going to set him straight about how things really were 19-ought-seven, by Gum. Did you know this is "an anti-intellectual, anti-artistic nation that breeds Jesse Helmses, Rush Limbaughs and Phyllis Schafflys"? Yes, those are his examples. Harlan: look in the Yellow Pages under “newspapers.” Phone ‘em up, and ask for them to drop a paper off at your door. You’ll discover that American culture has invented a few new bogeymen in the last 10 years, and that no one gives a nosehair for Phyllis anymore.

Which lets me segue into some Billy Joel lyrics that I always liked, even when I was 21 and going to a Gene Wolfe book signing at the Dangerous Visions bookstore.

And there's always a place for the angry young man
With his fist in the air and his head in the sand
He's never been able to learn from mistakes
He can't understand why his heart always breaks
His honor is pure, and his courage as well
he's fair and he's true, and he's boring as hell
And he'll go to his grave as an angry old man.

Thank you, Fresno. I will be playing here every Wednesday.

Living long enough to see the "kids" become old codgers is the best revenge.

Thanks for your prayers; I survived another day in Sunny California

So, yesterday I drove up from Fresno, passing through Muncie Country and ending up in Roger Ho, Esq. Land. [Which basically completes my inventory of Catholic Central Valley bloggers.] I had a deposition in Sacramento. The sky was a brilliant blue. At night, the moon shines like a quarter held at arms length in front of a limelight. It meant only one thing; I had to get on the road as early as possible to avoid the Tule Fog.

Mr. Muncie describes the infamous Tule Fog
thus:

The local name for this condition is tule fog, which can get very dense. It usually burns off by midmorning, although once or twice each year it lasts all day. In the bad spots, such as south of Merced and around Tulare, you can get huge chain reaction accidents on the highways with dozens of trucks and cars involved. The problem is that while the fog may not be all that heavy where you are, it does block your ability to see denser fog ahead. Drivers plunge on, without reducing speed, and all of a sudden are doing 80 in the middle of a zero visibility whiteout. The first person to hit their brakes initiates the pileup. According to weather.com, tule fog is the leading cause of weather related casualties in California.

Last week, I drove in from a Porterville Board of Education meeting around 7:30 p.m. and the fog was so thick, I could barely see my rear-view mirror. It almost made me think I should slow down from 80 m.p.h., but, heck, if I hit something, I want to be able to cut clean through it.

Actually, the drive to and from Sacramento wasn't too bad at night, but the morning was murder. This is the season that the PI attorneys live for. Forty car pile-ups in an early morning fog that closes up in seconds and reduces visibility to a complete white-out. I had no problems this evening. Drivers this morning, though, weren't as fortunate. According to this Bee article sixteen people were injured this morning in a dense fog that cut visibility down to about 150 feet.

We don't have hurricanes, ice storms, tornadoes, floods or earthquakes here, but we do get a decent fog.

More Like Mary, Less Like Martha has a post on the legality of internet linking. She links to Tech Law Advisor where IP attorney Keven Heller has some thoughts on the contractual aspects of IP protection. For Mr. Heller this has achieved a bloodsport level inasmuch as he has been told to eliminate deep links in his site by a voice mail from LA Times.

Anyhow, my contribution to this issue is to link to Kelly v. Arriba. [About two months ago, I wrote Bill Cork that I would outline this case. So, with my usual diligence, I finally located this case which was buried among my other advance sheets.]

The issue of deep linking constitutes of case of "first impression" - i.e., no judicial decision [at least in my jurisdiction] has made a decision as to whether a link to another website infringes on that website's copyright. Kelly provides some ammunition to argue that it does not.

Kelly involved that most vibrant portion of the internet economy - pornography. In Kelly, the defendant displayed "thumbnails" on his site, as well as links to complete pictures. The Ninth Circuit Court of Appeals considered the Copyright implications of both kind of internet links. The Court describes the factual premises of the case and its conclusions as follows:

When Kelly discovered that his photographs were part of Arriba's search engine database, he brought a claim against Arriba for copyright infringement. The district court found that Kelly had established a prima facie case of copyright infringement based on Arriba's unauthorized reproduction and display of Kelly's works, but that this reproduction and display constituted a non-infringing "fair use " under Section
107 of the Copyright Act. Kelly appeals that decision, and we affirm in part and reverse in part. The creation and use of the thumbnails in the search engine is a fair use, but the display of the larger image is a violation of Kelly's exclusive right to publicly display his works. We remand with instructions to determine damages and the need for an injunction.

The "thumbnail" links were protected as "fair use," the factors which the Court considered were described as follows:

Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997) (internal quotation marks and citation omitted). 10 The four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

The policy basis of "fair use" was described by the Court as:

The Copyright Act was intended to promote creativity,thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress made the fair use exception.24 Arriba's use of Kelly's images pro-motes the goals of the Copyright Act and the fair use excep-tion. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and there-fore do not supplant the need for the originals. In addition, they benefit the public by enhancing information gathering techniques on the internet.

The Court confirmed that this was a case of first impression.

No cases have addressed the issue of whether inline linking or framing violates a copyright owner's public display rights. However, in Playboy Enterprises, Inc. v. Webbworld, Inc., the court found that the owner of an internet site infringed a magazine publisher's copyrights by displaying copyrighted images on its web site. The defendant, Webbworld, downloaded material from certain newsgroups, discarded the text and retained the images, and made those images available to its internet subscribers. Playboy owned copyrights to many of the images Webbworld retained and displayed. The court found that Webbworld violated Playboy's exclusive right to display its copyrighted works, noting that allowing subscribers to view copyrighted works on their computer monitors while online was a display. The court also discounted the fact that no image existed until the subscriber downloaded it. The image existed in digital form, which made it available for decoding as an image file by the subscriber, who could view the images merely by visiting the Webbworld site. [Kelly v. Arriba Soft Corp. 280 F.3d 934, 945 -946 (C.A.9 (Cal.),2002).]

My view, which is not a legal opinion but just a talking point, is that if you can link to, and display, a thumbnail under the Copyright Act, you can link to an on-line article. Most bloggers transform the bare link into their own product by adding their own input or observations. Further, blogging is essentially non-commerical and the amount of copyrighted material which is used is not substantial.

Mr. Heller makes a fair point about the contractual aspects of IP protection. A contract to adhere to a newspaper's terms of use may arise from accessing the site. I question, though, whether a newspaper's use of the governmental monopoly provided by copyright can be used as a vehicle to force a waiver of fair use rights. I know that in the trademark area, the owner of a mark cannot use its monopoly to "link" trademark usage to the purchase of other, non-protected. For example, Kentucky Fried Chicken cannot use its trademark leverage to force franchisees to purchase napkins from KFC.

Anyhow, this is just an attempt to put relatively recent decision involving the internet into play. Let me know what you think.

Federal prosecutors and regulators entitled to overtime according to this Law.com article. I'm not sure why they are not exempted as licensed professionals. I know I was. At least, I think I was.

So, I watched Scotland PA this weekend. It's a pretty good adaptation of the Bard's MacBeth, except for the fact that it is set in hamburger joint in a small Pennsylvania town in the early 1970's. MacBeth is a slacker fry cook who is driven by his his wife [News Radio's Maura Tierney] to murder Duncan, the owner of the burger joint, by dropping him into a deep fryer. Suspicion focuses on the older son, Malcom. MacBeth's friend Banconi, aka Banko, has some suspicions. Pretty soon MacBeth is successfully pioneering the first drive through in the area. Things look good except Mrs. MacBeth is obsessed with a burn on her hand, and Detective MacDuff, played by Christopher Walken as Christopher Walken, is putting together the clues. Here's a MovieWeb synopsis of Scotland, PA. The director described the plot as being written for a high school student who was reading Cliff Notes stoned. Fair warning - some reviewers thoroughly panned Pennsylvania PA, but I liked it for the clever take-off on the Shakespeare classic.

Anna over at BBB: Come for the bunny photographs. Stay for the Warmongery has a similar tolerance for off-beat flicks. Here's an excerpt from her review of that future classic - Six String Samurai:

You want to watch a film with lots of swordfights, Bro wants post-apocalyptic sci-fi, Sis wants a religious epic, Mom wants a tender, flowering relationship story, Dad wants an Elvis picture, and the grandparents want a musical.

How could you possibly satisfy everyone?

You could start by bringing home Six String Samurai.

Check it out. Looks like an odd way to kill a Saturday afternoon.

Here's a pretty neat site if you're the kind of person who likes to pick up on plot and scene errors in movies - Nitpickers Home Index.

Fresno Bee columnist, and an occasional denizen of Brix's, Jim Boren tells us why we should take redistricting out of the hands of the politicians. And, he's right. Basically, the politicians have cut a deal to protect incumbents.

Actually, the first two times I took this test it came out as John Wesley

"God will not suffer man to have the knowledge of things to come; for if he had prescience of his prosperity he would be careless; and understanding of his adversity he would be senseless."

You are Augustine! You love to study tough issues and don't mind it if you lose sleep over them. Everyone loves you and wants to talk to you and hear your views, you even get things like "nice debating with you." Yep, you are super smart, even if you are still trying to figure it all out. You're also very honest, something people admire, even when you do stupid things.

What theologian are you?

A creation of Henderson